Posts tagged university of british columbia

Increasingly, students are calling lawyers when their degrees are in jeopardy.

On a fairly regular basis, students at every educational institution are accused of academic or non-academic misconduct. This includes cheating on exams, copy-and-pasting on essays without attribution, harassing another student, and so on. Often, the professor or other staff member who notices or hears of it will let it go without a big fuss, but occasionally (and this varies by institution) a formal dispute resolution mechanism will be triggered, which involves potentially disastrous results for the student.

For example, the Office of the University Counsel at the University of British Columbia (UBC) shows comprehensive annual reports that detail the cases that went before UBC’s disciplinary committee. In 2010/2011, 39 students were brought before the committee; only one student among them appears to not have been disciplined in some way or another. In 2009/2010, 61 were accused and 58 were disciplined. Many of the penalties were letters of reprimand, zeroes in a course, assignment or exam, or suspensions from UBC.

Each of those penalties can mean something different depending on the student, and they are there for a reason: if do something wrong, then you accept the consequences. The president of each university has the legal authority (BC Laws) to impose disciplinary measures on students for academic and non-academic misconduct. But the right safeguards have to be in place to ensure the punishment fits the crime, and so students are entitled to procedural fairness, which includes, generally and to varying degrees:

the right to be heard – this means the student must be able to participate meaningfully in the disciplinary process, to know what they are accused of, why and by whom, and to have a reasonable opportunity to respond to those accusations and address any supporting evidence; and

the right to be judged impartially – this means the student must be heard without bias, otherwise the right to be heard has no value. As a result of this, many universities have multiple member panels composed of professors from various different faculties to reduce the likelihood of bias dictating the outcome.

Because of the implications of disciplinary measures on a student’s future, the legal requirements of procedural fairness in this area include the right to an appeal, which for universities means the right for the student to have the disciplinary committee’s decision reviewed by another committee of the university senate or the senate itself. Also, there is a right to be represented or assisted by legal counsel, which few students can actually afford but which can be incredibly important depending on the circumstances.

These procedures don’t only have to be procedurally fair, they have to be substantially fair too. The process is meaningless if the outcome is completely illogical or disconnected from the facts and arguments presented.

These rules are reviewed in this recent decision (CanLII) from a court in Newfoundland involving Memorial University and this one (CanLII) from a couple of years ago involving UBC. Students and universities regularly go through these procedures and wind up in court, where more often than not the judge defers considerably to the university. Getting to that point costs the university a lot, so neither party really ends up happy in the end, which makes it essential for everyone involved to devote their resources to resolving these issues early on.

Universities, for their part, know this is simply a fact of doing business. Students break codes of conduct all the time, so the right process has to be there and the issue has to be confronted. The average student, however, will likely never have to know much about this part of the university experience, and if they do get a letter or email with the bad news there is a strong temptation to deny it’s a problem, to procrastinate in dealing with it or to think they can handle it on their own.

Big mistake.

Instead, here are some general suggestions on how a student should approach the issue:

Understand as soon as possible what is going on and prioritize it. If a professor or anyone else has accused you of doing something wrong, try to speak to them. Ask for a meeting – soon. Review any correspondence you have received and think seriously about how to respond, especially if the professor or the university seems to be unaware of a key piece of information. Be active and do not let it sit. Confront it and make sure you do whatever needs to be done in the right time. Look over your university calendar to see what the allegation means and how the process is supposed to unfold.

Connect with a student advocacy office. Most universities have relatively helpful advocacy centres generally maintained by student societies where students accused of misconduct can be assisted by a student advocate, who is often a law student. For example, have a look at the AMS Advocacy Office site at UBC.

Try to understand where the university is coming from. One of the hallmarks of maturity is putting your feet in someone else’s shoes. Most people do not go through life looking for a fight. Most university employees, including professors, believe in education; they want good students to get good grades and then to get good jobs and lead happy lives. On the flip side, they want bad judgment to meet bad consequences; to show students that rules have meaning; and to prove to themselves, their superiors and their colleagues that they have integrity and are tough but fair.

If you found the advocacy office unhelpful or think you need further advice, it may be appropriate to call a lawyer with experience in the area. Keep the following points in mind:

You get what you pay for. University advocacy services are free, but lawyers are not. They are professionals outside the university with years of legal training and experience. It cost them a lot to get there, and their services have a value determined by the marketplace. You can surf legal or university websites all you want, but an hour with an expert can give you infinitely more. Also, older lawyers generally cost more than younger lawyers. You have to do your own cost/benefit analysis.

Understand how lawyers work. Most lawyers charge by the hour for their services. This includes telephone conversations, meetings, doing research – any time they spend working for you will wind up on a bill. Multiply that time by their hourly rate (which you should ask for in advance) and you end up with the amount you will have to pay, plus taxes and disbursements. They need certain personal information from you, like your name, telephone number and address, and will usually insist on a retainer payment before spending much time.

Try to make their job as simple as possible. To cut down on lawyer fees, make sure you are as organized as possible and can clearly explain what you want from them. Be prepared for meetings or scheduled telephone conversations by organizing documents or writing out what you want to say or ask in advance. Always leave messages if you call them, and try to respond as promptly and exhaustively as possible to everything being discussed.

Listen to the caveats and disclaimers. If meet a lawyer at a party, run through your circumstances over a beer, and then ask whether or not you are in the right, you can almost be sure that you shouldn’t bank on the answer. That’s like asking a doctor for a diagnosis while sky-diving. Legal services, like medical services, need to be comprehensive and delivered in the right setting to have any significant value. Cutting corners will not get you far and shouldn’t help you sleep better at night. A good lawyer will toss in enough caveats and disclaimers to avoid sounding awkward (e.g. “this is information, not advice”, “I can’t really give you an opinion without looking at the documents”, etc.) – pay attention to those.

Hiring a lawyer does not mean they can work magic or change the past, but it does mean you will have someone in your corner with expertise when it comes to your rights and obligations as a student.

The Globe and Mail reported this week that the Crown has approved charges (VPD) to be laid by the Vancouver Police Department against a UBC student, Camille Cacnio, who appeared from video footage and from an apparent confession to have participated in the Stanley Cup riot early this past summer.

Cacnio was caught on camera during the riot and her misdeeds were profiled in many of the name n’ shame website and social media chatter that cropped up with vigilante vengeance shortly thereafter. She ultimately responded by purportedly posting a half-apologetic, half-accusatory confession online.

Cacnio is not the first University of British Columbia (UBC) student (The Ubyssey) to be charged in connection with the riot, and she will probably not be the last. Despite getting some heat from donors and members of the public, UBC has been steadfast in affirming that it is not the university’s place to discipline students like Cacnio. According to Randy Schmidt, associate director of UBC Public Affairs, as reported in The Ubyssey:

While the university believes all persons involved should be called upon to account for their behaviour, it does not believe the student discipline system at the university is the appropriate forum to do so… The system of student discipline at the university is meant to address offences specifically committed against members and property of the university community.

This is the correct approach, for many reasons. Here is more information on this issue (University Affairs).

Similar pressure was applied to UBC over the past couple of years in relation to Sasan Ansari (Vancouver Sun), a West Vancouver man who stabbed a friend to death outside the Hollyburn Country Club in November 2008. The court considered Ansari to have committed the killing while in a “dissociative state”. He was released on parole last January and returned to taking courses at the UBC law faculty this past September.

Names, especially really, really old ones with very positive associations, have incredible value in the marketplace. Some companies are made or broken on their trademarks (Wikipedia), and some organizations spend years in court relying on the law to protect their brand. Universities, to a certain extent, are no exception and recognize the need at times to give a lesson on the ownership of names by curtailing how its brand is used in the public domain.

Karen Seidman at the Montreal Gazette reported last week that McGill University and the Students’ Society of McGill University (SSMU) concluded a Memorandum of Agreement regarding the use of the McGill name, which left many students unhappy, including the SSMU leadership, and has forced many student clubs to change their official names. Maggie Knight, SSMU President, admitted that SSMU, including its umbrella of clubs, had no legal rights to the McGill name, and now many clubs will have to adapt their materials to deal with the naming restrictions.

In response to discontent from students, McGill has emphasized that it is simply insisting that student organizations have names that specify they are students and not an arm of the university itself. Here are some examples:

Elections Mc-Gill will now be Elections SSMU;

TVMcGill will now be TVM: Student Television at McGill;

McGill Walksafe will now be SSMU Walksafe;

McGill Nightline will now be McGill Students Nightline;

McGill First Aid Service will now be Student Emergency Response Team; and

McGill Outdoors Club will now be McGill Students Outdoors Club.

It makes sense that the university would want to clarify what activities or services are being offered by students, who are vital to but independent of the administration of the university, and what activities or services are being offered by the university itself. The beef from students comes from the fact that they now have to scramble to adjust their promotional materials to different names imposed on them by the administration, and the fact that the process involved an imbalance in negotiating power.

Students also say that the administration wanting to reserve the sole word “McGill” for non-student affairs downgrades students as peripheral to the university’s mission and identity. Here is an editorial on this issue from the McGill Daily, which expresses concerns about a whitling away at what or who is included in the “McGill Community”. The editorial harps on the justification for the administration’s push being liability for damage caused by student groups (though that appears to be unconvincing from a legal perspective, so I doubt it was the main reason).

McGill has offered $25,000 to help cover the costs of any changes to banners, crests, T-shirts and so on featuring names that are no long permissible. Here is a list of new club name options for students approaching SSMU to create a new club.

SSMU seems to have gotten good legal advice: the university, not the student society, owns the name McGill whenever it is used in connection with the university. Canada’s Trade-marks Act (Department of Justice) includes special rules that favour universities, among other public bodies, when it comes to their names and emblems:

9. (1) No person shall adopt in connection with a business, as a trade-mark or otherwise, any mark consisting of, or so nearly resembling as to be likely to be mistaken for…

(n) any badge, crest, emblem or mark…

(ii) of any university…

in respect of which the Registrar has, at the request of Her Majesty or of the university or public authority, as the case may be, given public notice of its adoption and use…

In other words, if a university has asked the Registrar of Trade-marks to give notice of its use of a particular trademark (and the Registrar has done just that), then no one can adopt that trademark or any trademark that could be confused for the university’s trademark. Here is an example of one of McGill’s trademarks registered with the Canadian Intellectual Property Office (CIPO), and this is how CIPO defines a trademark:

A trade-mark is a word (or words), a design, or a combination of these, used to identify the goods or services of one person or organization and to distinguish these goods or services from those of others in the marketplace.

Have other universities gone the same route?

The University of British Columbia (UBC) does not seem to have the same restrictions in place; here is a list of student clubs from the Alma Mater Society (AMS) website, many of which appear to violate McGill’s rules. (The sample constitution provided to students to establish a club within the AMS envisions a name like “The ____ of UBC”.) The same seems to apply at the University of Toronto: here is a list of student clubs from the University of Toronto Students’ Union, many of which appear to violate McGill’s rules too.

If you are interested in learning more about how UBC approaches this issue, here is a list of UBC trademarks, which includes regular trademarks and those under Section 9(1)(n)(ii) of the Trade-marks Act (discussed above). Here is a pamphlet put out by UBC’s Office of the University Counsel about its trademarks, and here is a related university policy.

According to the Montreal Gazette article cited above, two other major universities in Montreal may have policies similar to McGill.

The Supreme Court of Canada this week dismissed an application by the University of British Columbia (UBC) for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the certification of a class action against UBC connected to a freezer failure at a sperm bank within a UBC lab. In Lam v. University of British Columbia, the appellate court agreed with Lam that his claim raised issues common to other related claimants, which met the criteria for certification.

Lam’s story had some staying power in the media this past summer because of the basis for his claim (plus, quite possibly, because any court decision that repeatedly uses the word “sperm” will be considered newsworthy). Here is an excerpt from coverage in the Vancouver Sun:

The triggering event in the case was the freezer failure on May 24, 2002, when the supply of electricity to a Forma Scientific Inc. freezer was interrupted when an inadequate circuit breaker tripped.

The freezer was used for storing cells at a temperature below -130 degrees Celsius. The freezer contained sperm samples belonging to Lam and other men who were undergoing chemotherapy or other medical treatments that could adversely affect their reproductive capacity.

The freezer’s security alarm system failed to function and it was without electrical power for some time, rendering the sperm immobile and destroying genetic material.

The freezer was purchased by UBC in July 1987 and was initially used for kidney research. In 1993, it was transferred to the Andrology Lab at the Koerner Pavilion at UBC Hospital. It remained there until Feb. 22, 2001, when it was moved to the lab’s new location at Vancouver General Hospital.

UBC has denied it was negligent, maintaining it met the appropriate standard of care for a sperm storage facility and that sperm donors signed an agreement limiting liability.

Class actions are permitted for the sake of saving parties alot of time and money (see here for more information on class actions from the Canadian Bar Association). The idea behind a class action is that rather than forcing individual claimants to hire their own lawyers, have separate trials, etc., if the claims are similar enough multiple claimants should be allowed to come together, cut down on legal fees, and go after a large organization that is accused of some wrongdoing through a single representative claimant. UBC, in this case, argued that Lam’s claim should not be approved as a class action, allowing many others to jump on the bandwagon, while Lam, of course, disagreed.

The Supreme Court of Canada’s decision here does not necessarily side with Lam in his essential claim against UBC, but rather denies UBC the opportunity to show the high court why the three judges sitting for the BC Court of Appeal got it wrong. This might be based on whether other, more worthy appeals were thought should be given a chance before the supremes; it’s impossible to say.

Getting this far in litigation is costly for any plaintiff, but generally if certification is ordered the defendant is fairly motivated to settle. It will be interesting to see whether Lam and others are able to pursue this matter much further, even as a class action, or whether the trip to Ottawa was enough to bring the parties together for a resolution.

The Supreme Court of Canada announced this morning that it has dismissed with costs the application of the University of British Columbia Faculty Association for leave to appeal to the high court the decision (CanLII) of the BC Court of Appeal regarding the policy of the UBC Senate on teaching evaluations. The Faculty Association had claimed that the policy violated its collective agreement with the university and brought the matter before arbitration. The arbitrator concluded that he did not have jurisdiction over the policy (see here for a previous post on the subject).

This is the second time in the past couple of years that the Supreme Court of Canada has dismissed with costs an application of the Faculty Association for leave to appeal – see here (CanLII). The facts of the matter, as set out in the decision (CanLII) of the BC Court of Appeal, involve the recommendation of the UBC President not to promote a particular professor. It appears the Faculty Association and UBC square off fairly regularly before the Labour Relations Board.

The Supreme Court of Canada recently dismissed (CanLII) an application by Daniel Barbour – the accountant who claimed UBC had no right to issue parking tickets – to hear an appeal to the decision (CanLII) of the BC Court of Appeal rejecting his claim. This brings his lawsuit to a final close. Here is a press release by UBC’s Office of the University Counsel.

There are many interesting elements of Barbour’s story – see my previous posts here and here.

The University of British Columbia celebrated last week’s decision by the Supreme Court of Canada refusing to hear an appeal from Cynthia Maughan, a student who alleged discrimination by the university and several professors on the basis of her Christian beliefs (see here for a previous post on this issue).

In 2008, the Supreme Court of British Columbia dismissed Maughan’s claim on the basis that there was no evidence to support one or more of its critical elements. This decision was upheld by the Court of Appeal. The rulings are available at CanLii here (BCSC), here (BCCA), and here (SCC).

Maughan has had ample opportunity to have hear claim heard at considerable expense to the university and to the court system. If she failed to convince the Court of Appeal that had enough evidence to support her claim (which, even if the court was wrong, would still be a far cry from deciding in her favour), then it is a good idea to let the top court in the country focus on other matters.